The right wording is an employer's best defence

Howard Levitt, Postmedia News08.29.2013

It is hard to lose the game when you set the rules. But many employers manage to do just that, whether as result of naivete, bad advice or irrational exuberance, rather than use their legal power, they too often tie their own hands.

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It is hard to lose the game when you set the rules. But many employers manage to do just that, whether as result of naivete, bad advice or irrational exuberance, rather than use their legal power, they too often tie their own hands. Here are six things employers can avoid:

1. Mission statements and corporate policies

Avoid using terms that can be interpreted in different ways. "Everyone should be treated fairly and no harassment or favouritism should ever be permitted." Everyone has a different definition, let alone perception of fair, harassment and favouritism.

By placing these prohibitions into policies or mission statements, an employer opens a floodgate of new obligations it did not have before. Furthermore, they virtually invite every employee who feels aggrieved, however amorphously, to sue the employer and rely on the legal contract of the corporate policy. The court will then use its particular sense of fairness, etc. to determine if the employer is in violation.

Without such a self-imposed policy, employers are not legally required to be fair except in very limited contexts. Similarly, other than by reason of human rights grounds, there is no legal prohibition against undefined harassment, except when it is so extreme as to amount to a constructive dismissal.

Why do this to yourself? What lawyers are permitting these statements entry into their clients' policy manuals?

2. Probation

Many employers put terms of probation into contracts and offer letters, yet they are under no obligation to do so. "Probation" requires you to provide the employee with a fair opportunity to prove they can do the job and severance if you fire them otherwise.

Employers put these terms in under the erroneous apprehension it permits them to fire the employee with impunity and without severance during that period. If that is what they intend, they should have simply stated that in the contract.

Such language, appropriately drafted, provides just that right. The word "probation" does not. Is this being explained to employers when their contracts are drafted?

3. Letters of warning

If you want to warn an employee she will be fired the next time she commits the same misconduct, you should say that clearly. Most employers, instead, phrase it this way: "Repetition of this behaviour will lead to further disciplinary action, up to and including dismissal."

I even saw a lawyer provide this advice recently in a competing media outlet. This language does not provide an employer what it intends and wants. It means that you will not be able to fire the employee if they commit that misconduct again unless what occurs is at the most egregious extreme of that misconduct. How many employers realize that?

4. Workplace investigations

A Japanese client once told me he loved Canadian employment law because it provided the right to fire any (non-union) employee, whenever he wished, as long as he paid enough money.

Although I recommend basic investigations by human resources employees to get the employee's side of the story (largely to pin that story down before the employee sees counsel), many employers, particularly in the public sector, are paying massive fees for "investigators" to investigate the misconduct of employees who could be fired, with impunity, for a fraction of the cost of the investigation.

Is that basic arithmetic being explained to employers? Do they understand that, other than for violations of the Human Rights Code, investigations are not required legally and, even for Code violations, the investigative obligations are minimal?

5. Privacy policies

Only in British Columbia, Manitoba, Saskatchewan, Newfoundland and Quebec is there legislation allowing lawsuits for violation of privacy rights and, even then, in limited circumstances.

Why then do employers promulgate expansive privacy policies providing employees the right to sue them and potentially limiting their ability to monitor emails, internet use and inappropriate activities?

6. Discipline

Most employers have articulated progressive discipline policies delineating various stages of discipline they must go through before dismissal. If an employee is not worth keeping, there is little point in going through this expense and many reasons not to.

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The right wording is an employer's best defence

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I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.